Wilson v. Wells Fargo & Co.

165 S.W. 36, 1914 Tex. App. LEXIS 53

• Court: Court of Appeals of Texas
• Decided: March 12, 1914
• Status: Published

Opinion

WILLSON, C. J.

(after stating the facts as above). We do not understand that either the railway company or Wells Fargo & Co., is in the attitude of controverting the contention, made by appellant that they respectively owed to him the duty to exercise ordinary care to see to it that the archway was reasonably safe for the use he was putting it to at the time he slipped and fell. Their position seems to be that, owing appellant that duty, there was no testimony authorizing a finding that they had not discharged it. .We think there was such testimony, and that the court erred when he refused to submit the case to the jury, and, instead, peremptorily instructed them to find against appellant. Appellant testified that the ice which caused him to slip and fall covered a space about two feet in diameter at a point on the floor four or five feet within the archway and eight or ten feet from the west wall thereof. Considering the use being made of the archway by employés of the railway company and of Wells Fargo & Co.,' we think the jury reasonably might have found that an ordinarily prudent person charged with the-duty the railway company and Wells Fargo & Co., owed to such employés, would not have suffered ice to form on the floor, or, if he did suffer it to form there, would have promptly discovered and removed it, or, failing to remove it, would have taken other steps to protect said employés against danger they otherwise would incur from its presence on the floor while they were using the archway.

Therefore we think the judgment should be reversed, and the cause remanded for a new trial; and it will be so ordered.